When a person dies, it is expected that someone will step forward to collect the deceased’s assets, pay off any debts and distribute the remainder to the beneficiaries. This person, referred to as the estate representative in this project, is typically a family member or friend of the deceased. Although most family members or friends who undertake this role will not have legal training, they are responsible for carrying out what can be a complex administration process. In order to formalize their authority to deal with the estate’s assets, they must file a court application for a Certificate of Appointment of Estate Trustee with or without a Will (COA). This is commonly known as obtaining “probate” or “probating” the estate. Most people require legal assistance in order to navigate this process.
Where the value of an estate is relatively small, the cost of obtaining probate may drain the estate so that there is very little left for beneficiaries. This raises the concern either that the estate will be administered without the protection of probate, or that the estate will not be administered at all and the deceased’s assets will be abandoned.
Of course, opinions differ on what amounts to a “small” estate. Defining that concept is a key issue in this project as discussed below.
Some jurisdictions in Canada, the United States and the Commonwealth have adopted simplified procedures for administering small estates. There are a variety of different approaches but they typically involve an alternative process with relaxed procedural and/or evidentiary requirements for estates valued at less than a particular designated amount. Their goal is to strike a balance between the greater legal protection offered by the full probate process and the increased affordability and accessibility of a simplified process.
To date, Ontario has not adopted a simplified procedure for small estates. In this project, the Law Commission of Ontario (LCO) considers whether it should do so and, if so, what that procedure should look like. The LCO is examining the current requirements for obtaining probate in Ontario and the experience of Ontarians seeking to administer small estates under this process. The LCO is also looking to small estate procedures in other jurisdictions as possible models for an Ontario small estate process.
This project was approved by the Board of Governors on February 28, 2013. Between August 2013 and February 2014, the LCO engaged in a preliminary research and interview process in order to consider the legal and social problems raised by the project, identify particular issues to be addressed and define the scope of the project so as to make best use of LCO resources. During this period, approximately 20 preliminary interviews were carried out in person or by phone with key stakeholder groups including estates practitioners (in both urban and rural communities), government representatives including court officials, financial institutions, representatives from other jurisdictions considering small estates law reform and others. The LCO also assembled an expert Advisory Group representing these same stakeholder groups in order to provide ongoing advice throughout the project. The Advisory Group members are listed at Appendix A of this consultation paper.
This consultation paper describes Ontario’s existing probate process and compares this to specialized small estate processes in use in other jurisdictions. It invites all Ontarians to comment on the best definition of “small estate”, the experience of probating small estates under the current process and on ways to improve the process. In particular, the LCO would like to know how costly it is to probate small estates currently, whether legal assistance is considered necessary to the process and whether there are ways that the existing process might be made more user-friendly. More specific questions appear throughout the consultation paper and the LCO invites comments on any or all of these questions. With the benefit of this consultation process, the LCO will prepare a final report with recommendations on whether a simplified process would facilitate the administration of small estates in Ontario and, if so, the preferred design for that process.
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